Ruling Strikes Down U.S. Forest Service Approvals of Mining Projects Across the West
Published on Mar 19, 2013 - 8:22:07 AM

WASHINGTON, D.C. March 18, 2013 - Today the Supreme Court let stand a decision from the En Banc panel of 11 judges of the federal Ninth Circuit Court of Appeals in San Francisco that essentially establishes that the Endangered Species Act (ESA) trumps the 1872 Mining Act. Recreational mining groups had filed a petition with the Supreme Court asking that they overturn the lower court decision, but the petition was denied.

"This decision is a great victory for the Karuk Tribe and everyone else who believes that federal agencies must act to protect our natural resources and fisheries," according to Buster Attebery, Chairman of the Karuk Tribe.

The Appeals Court ruling last June stemmed from a lawsuit filed by the Karuk Tribe in Northern California in 2004 alleging that the U.S. Forest Service had violated the federal Endangered Species Act (ESA) when the agency approved a slew of mining operations in ESA listed coho salmon habitat in and along the Klamath River in northern California.

The Tribe filed the lawsuit to protect salmon which are cornerstone of the Tribe's culture and traditional diet. Beginning in the early 1990s, a flood of smaller-scale recreational mining operations, primarily suction dredging operators, invaded the Klamath River system to search for gold in and along the banks of these rivers and streams. As described by the Appeals Court's decision, "These miners use gasoline-powered engines to suck streambed material up through flexible intake hoses that are typically four or five inches in diameter. The streambed material is deposited in a tailings pile in or beside the stream. Dredging depths are usually about five feet, but can be as great as twelve feet." The Appeals Court detailed the scientific studies that found that suction dredging in critical species habitat "can directly kill and indirectly increase mortality."

Beginning in 2003 and 2004, the Forest Service allowed suction dredging and related practices known as highbanking and power sluicing on more than 35 miles of the Klamath River and its tributaries, without conducting any public environmental reviews, without subjecting its actions to any public notice, and, importantly for this case, without any compliance with the ESA. The Tribe's lawsuit challenged the agency's failure to protect the salmon and its habitat, which have been determined by the National Oceanic and Atmospheric Administration (NOAA) to be threatened with extinction. The agency had approved all of the mining via its "Notice of Intent" (NOI) process, which the agency argued exempted itself from compliance with federal environmental and wildlife protection laws.

The Appeals Court rejected that claim, concluding that: "We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest."

"This decision sets a major precedent across the western states," said Roger Flynn, lead attorney representing the Tribe, and the Director and Managing Attorney of the Western Mining Action Project, a Colorado-based non-profit environmental law firm specializing in mining issues in the West. "The government and miners had argued that the archaic 1872 Mining Law, which is still on the books today, overrides environmental laws such as the Endangered Species Act. The Appeals Court flatly rejected that untenable position and today the Supreme Court refused to overturn that ruling." said Flynn.

Although focused on the mining in northern California, the Forest Service's practice of failing to consider the ESA when approving smaller-scale mining projects such as suction dredging occurs throughout the West. "Today's decision sets the proper balance between mining and the protection of clean water and wildlife habitat across the West," noted Flynn. "The law requires that the federal agencies ensure that mining is responsible and reasonable, and protects communities and the environment. The Court today re-affirmed this guiding principle of federal public land management." said Flynn.

Ah, the Forest Service, historic friend of all that dwell within it. Great, and common sense, decision. Interesting that the pop up ad on the site is now saying "It may be time to consider GOLD". Thanks, Kent.

The mandate of the USFS is to sell whatever they can. Smokey the Bear is only concerned with forest fires because they burn down his product. He could care less about the forest and the animals who live there. It's hard to sell burned up trees.

The mandate of the USFS is to sell whatever they can. Smokey the Bear is only concerned with forest fires because they burn down his product. He could care less about the forest and the animals who live there. It's hard to sell burned up trees.

It would be great now if dredging could be banned on the NF of the Clearwater to protect the endangered Bull Trout. The SF of the Clearwater and its tributaries are a prime example of the harmful and long lasting impacts of dredge mining on a watershed.

Kent, you have to forgive me if I'm jaded against the USFS. I've seen too many clear cuts on federal land that caused damage to salmon/steelhead streams. I grew up in a timber city and know those working for the USFS who sold the forests and they happened to be good friends with the timber companies and ignored their practices in harvest. The prime directive was to sell trees, not to protect the environment.

So, you may very well be correct but I'm now programed to always question anything the USFS does.

That said, there are USFS employees who do care about the environment and logging practices but they are not the majority and usually shouted down by the powers that be.

Gene, I grew up in rural northern California and worked summers in the Pacific Lumber Company redwood mill in Scotia to finance college. Back then, the notion of selective harvest was a highfalutin' abstraction in the communities that depended on clear cuts to put bread on their tables. The USFS didn't even amount to a blip on the radar back then beyond providing fire suppression. Their role has changed over the years and IMHO they've finally adopted more of a conservation ethic now that we've damned near decimated the forests they were supposed to be protecting. Nothing left to sell, I guess.

Kent, yup. Their mandate really is to sell natural resources. Congress came up with that way back when. I guess I shouldn't blame them for doing what Congress told them to do. Unfortunately, in many, many cases they sold the trees on federal land at bargain basement prices and much less than what private land owners charged for their trees.

I'm afraid there was a lot of back scratching going on. The USFS was far too friendly with the timber companies.

Living in Corvallis with OSU in town is very interesting. The Forestry Department seems extremely buddy, buddy with the timber industry. In fact, it was the Forestry Dept at OSU that suggested clear cutting as a more efficient manner in which to wipe out forests for the highest profit for the timber companies.

Just a few years ago, a graduate student in the Forestry Dept published a paper in regards to his study indicating that "salvaging" trees after a forest fire was a bad idea and damaging to the forest. The powers that be at the Forestry Dept went ballistic and tried to discount the student and the paper. They failed. Instead, public pressure made the university take a closer look at those who control the Forestry Dept and their relationship with the timber industry.

Oddly enough, they backed off their attempts to discredit the student's paper.

Well, so much for that. I can go on and on in regards to the USFS, The Forestry Dept at OSU and the timber companies so time to put this one to bed.

Yeeeeeeeeeeee Haaaaaaaaaaaaaaaa! Although I should quickly get those gold fillings I wanted and I was thinking that I'd start using gold as an alternative to tungsten and lead in my fly tying.

This is so very very very fishing related.

Anybody else ever read My Story As Told By Water by David James Duncan? He has a story in there that's called "The 1872 Knee-Mining Act & Your Exciting Financial Future!" The gist of the story without giving too much away is the right of mining companies to extract minerals from someones body. I think you get the idea.

...Just a few years ago, a graduate student in the Forestry Dept published a paper in regards to his study indicating that "salvaging" trees after a forest fire was a bad idea and damaging to the forest. The powers that be at the Forestry Dept went ballistic and tried to discount the student and the paper. They failed. Instead, public pressure made the university take a closer look at those who control the Forestry Dept and their relationship with the timber industry...

Gene, I grew up in rural northern California and worked summers in the Pacific Lumber Company redwood mill in Scotia to finance college. Back then, the notion of selective harvest was a highfalutin' abstraction in the communities that depended on clear cuts to put bread on their tables. The USFS didn't even amount to a blip on the radar back then beyond providing fire suppression. Their role has changed over the years and IMHO they've finally adopted more of a conservation ethic now that we've damned near decimated the forests they were supposed to be protecting. Nothing left to sell, I guess.

One problem in Washington is that the USFS isn't approving the permits. It's our very own WDFW under the umbrella of the Dept. of Ecology's enforcement of the Clean Water Act.

So this ruling won't impact the suction dredging on the Yakima unless it's portions of the river that runs through federally owned land, nor the Wenatchee (same thing).

That said, it could have some impact, if people press the issue, on the claims along Blewett Pass. But it will take folks to push with the issue with USFS and to force them to seek a BiOp on whether suction dredging harms either anadromous or non-anadromous fish species (Bull trout).

While you are considering this momentous decision, google The Tongass Amerca's Salmon Forest and sign the petition to set aside 77 small tracts in our largest national forest to protect salmon and steelhead spawning and rearing areas, and make a bunch of fish, G Smolt and me happy. Believe it or not, even the USFS favors this project.